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Customs - Case Laws
Showing 1 to 20 of 109 Records
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2023 (3) TMI 1456
Requirement to pay education cess, higher secondary education cess and social welfare surcharge through cash payment - appellant had debited education cess, higher secondary education cess and social welfare surcharge from the duty credit scrip - HELD THAT:- Hon’ble High Court of Madras in the case of M/S. KTV HEALTH FOOD PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS (PREVENTIVE) , TIRUCHIRAPALLI [2021 (10) TMI 119 - MADRAS HIGH COURT] has applied CBIC circular No. 02/2020-Customs dated 10.01.2020 for non-recovery of education cess, and higher secondary education cess and requested to follow the said ruling and allow the appeal.
In view of the ruling by Hon’ble Madras High Court, the benefits conferred under clause 11 of circular No. 02/2020- Customs dated 10.01.2020 applied to education cess and higher secondary education cess. In the result the confirmation of demand in both the Order-in-Original is set aside.
Appeal allowed.
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2023 (3) TMI 1405
Interpretation of statute - the word 'issue' as mentioned in Regulation 20(1) of Customs Broker Licensing Regulation, 2013/2018 has to mean simpliciter issuance or to be read as 'served' or not - for the goods stored in Customs Bonded Warehouse, after its clearance from the port, a CHA can be charged for violation Customs Broker Licensing Regulation or not - Revocation of Customs Broker License - forfeiture of security deposit - penalty.
Whether the word 'issue' as mentioned in Regulation 20(1) of Customs Broker Licensing Regulation, 2013/2018 has to mean simpliciter issuance or to be read as “served”? - HELD THAT:- The same is covered against the appellant by a recent judgment of this Court in Commissioner of Customs (Airport & General) v. M/s R.P. Cargo Handling Services [2023 (3) TMI 250 - DELHI HIGH COURT] where it was held that In the present case, there is no ambiguity in the language of Regulation 20(1) of the CBLR. It requires that the Commissioner issues a notice within the period of ninety days from the receipt of the offence report. There is, thus, no reason to construe the expression ‘issue’ any different from its plain meaning.
Whether, for the goods stored in Customs Bonded Warehouse, after its clearance from the port, a CHA can be charged for violation Customs Broker Licensing Regulation, 2013/2018? - HELD THAT:- There is an allegation regarding the appellant not complying with the KYC conditions. It is contended that the importer firm had been constituted by one Mr. Ramesh Wadhera, who had allegedly financed the said firm, and there is an allegation that his employees were reflected as the owners of the said firm. According to the appellant, it had dealt with one Mr. Sanjeev Maggu, who had represented himself as the Chief Manager of the firm in question - there is no analysis in the impugned order as to whether the appellant had any obligation in law to report any offence in relation to the goods after the same had been imported and after the professional role of the customs broker in clearance of the goods had ended.
The impugned order on merits ought to be set aside and the Tribunal be directed to consider the allegations afresh as well as to decide the question of proportionality of the punitive measure imposed on the appellant - At her request, list on 06.04.2023.
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2023 (3) TMI 1396
Punishment of reduction of pay by 3 stages in the time scale - HELD THAT:- This Court in exercise of writ jurisdiction under Article 226 would not sit in appeal over the decision taken by the respondents; however, would be more concerned with the decision making process. In the present case, the principles of natural justice have been adhered to.No grievance has been made in respect of the same. The defence has been appreciated and re-appreciated by the Appellate Authority and the Tribunal - there are no perversity in the appreciation of the defence in that regard.
The Appellate Authority came to the conclusion that the charges I and IV are not proved and they are required to be dropped. However, from operative part of the order, it appears that the Appellate Authoritydropped charges in Article I while modifying the order of the Disciplinary Authority and imposing the penalty. In fact, the Appellate Authority was required to consider dropping of charges in Articles I and IV both.
The matter is remitted back to the Appellate Authority for deciding the appeal afresh with regard to the quantum of punishment - Appellate Authority shall consider that the charges framed in Articles I and IV have been dropped against the petitioner as not proved and only charges in Articles II and III are to be considered for punishment and thereafter impose punishment accordingly - Petition disposed off.
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2023 (3) TMI 1383
Seeking permission of recording his statement under Section 108 of Customs Act, 1962 in visible but not audible distance of advocate - HELD THAT:- The Petitioner alleges that he has been assaulted by some of the officers of the Customs Department in the past. This allegation of course has been denied by Respondent Nos. 1 and 2. But, what remains on record, is clear and it is the apprehension entertained by the Petitioner. It is this apprehension, which is required to be taken care of by us in a best possible manner. The best possible manner to deal with it is to allow presence of the advocate at a visible distance but beyond the audible distance. This will also ensure transparency in the enquiry that Custom Officers propose to make with the Petitioner and this is what has been done by this Court in several similar cases in the past.
It is directed that if any statement of the Petitioner is to be recorded in terms of Section 108 of Customs Act, 1962, same shall be recorded in the presence of advocate of the Petitioner kept at a visible distance but not audible distance during interrogation. The prayer for videography is however rejected - Appeal allowed in part.
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2023 (3) TMI 1378
Transmission of shipping bills from Systems’ backend to DGFT for MEIS benefits - HELD THAT:- A joint meeting had taken between the officers of the Customs Department and Director General of Foreign Trade and not only the issue regarding the petitioner therein has been resolved but the changes in the software system have been brought about.
Stand over to 12 April 2023, to be heard along with O.S.Writ Petition No.3202 of 2022.
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2023 (3) TMI 1362
Refund of the Special Additional Duties of Customs (SAD) - rejection on the sole ground that the same were barred by the limitation - no SCN issued before rejection of appeals - principles of natural justice (audi alterem partem) - HELD THAT:- The issue decided in the case of M/S. S.K. ENTERPRISES VERSUS ASSISTANT COMMISSIONER OF CUSTOMS (REFUND) ICD, TUGHLAKABAD, NEW DELHI. [2023 (2) TMI 1138 - DELHI HIGH COURT] where on similar issue matter was remanded as no SCN was issued before rejection of appeals, and thus no reasonable opportunity to meet the objections regarding any alleged discrepancies in the refund claims was provided.
The order impugned in the present appeal is set aside and the matter is remanded to the Tribunal to dispose of the same - Appeal disposed off by way of remand.
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2023 (3) TMI 1338
Classification of imported goods - LCD panels - classifiable in Chapter Heading 9013.8010 of the First Schedule to the Customs Tariff Act, 1975, as Liquid Crystal Devices or classifiable as 85.29 "parts of goods falling under heading 85.28? - HELD THAT:- When goods are excluded from a particular chapter, the “pull in” through a note has to be narrowly construed, as otherwise, the basis of exclusion would be defeated, and the earlier note (of exclusion) rendered redundant. Finally, Secure Meters [2015 (5) TMI 241 - SUPREME COURT] is decisive on the question that LCDs are not articles provided “more specifically in other headings”, i.e., other than 90.13. Furthermore, the fact that LCDs could be used for purposes other than television sets or audio sets is also concluded because, in that decision, its use in meters was in issue.
The CESTAT’s reasoning and conclusions, in both cases, that the LCD sets were under Chapter 90, Entry 9013.8010, is sound and unexceptionable. - appeal dismissed.
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2023 (3) TMI 1337
Jurisdiction - power of DGFT to amend the Import Policy Condition - competent authority - delegation of power - validity of Notification No.17/2015-20 dated 29.07.2016 issued by the Central Government under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 - import of poppy seeds - HELD THAT:- In the present case, the amendment was made subject to Import Policy Condition No.3 of Chapter 12 of the ITC (HS), 2012 Schedule I (Import Policy). The Gazette Notification Extraordinary unambiguously stipulates that “In exercise of powers conferred by Section 3 of Foreign Trade (Development and Regulation) Act, 1992, read with paragraphs 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time to time, the Central Government hereby amends the Import Policy Condition No.3 of Chapter 12 of ITC (HS), 2012".
Thus the amendment was issued by the Central Government in exercise of the powers conferred under Section 3 of the Foreign Trade (Development and Regulations) Act, 1992, the alleged signature of the Director General of Foreign Trade made pursuant to the application of powers under Administrative Law shall not invalidate the Notification, which is otherwise, issued pursuant to Section 3 of the Foreign Trade (Development and Regulations) Act, 1992 - Once the Central Government invoked the powers in the Act and issued Gazette Notification, the said Notification amounting to merit of policy of the Government cannot be challenged simply on the ground that the said Notification was signed by the Director General of Foreign Act.
The Directorate General of Foreign Trade (DGFT) was given delegation of powers for signing the Notification in view of the smooth functioning of the Central Government Administration - this Court do not find any infirmity in respect of the amendment issued to the Foreign Trade Policy.
Petition dismissed.
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2023 (3) TMI 1336
EPCG Scheme - non-fulfilment of export obligation - petitioner mainly contended that the circular No.7/2002 is applicable to the case of the petitioner and the petitioner has already submitted all the relevant documents and thus, there is no reason, whatsoever, to reject the claim of the petitioner based on the said circular No.7/2002 - HELD THAT:- On consideration of clause (v) of the policy scheme No.7/2002, which reads as “this would be subject to the condition that the relevant shipping bills contain both the names of the 3rd party(s) and the license holder”. Therefore, the exemption is subject to the condition that the relevant shipping bills containing both the names of the 3rd party and the license holder must be produced. The findings of the authority in the impugned order with reference to condition (v) is that “ condition (v) of policy circular No.7/2002 dated 11.07.2002 clearly states that, condonation of procedural lapse of not mentioning EPCG license number and date on third party shipping bills relating to the exports for fulfilment of EO under EPCG scheme may be allowed, subject to the condition that the relevant shipping bills contain both the names of the 3rd party(s) and the license holder.
The findings are to be read with reference to the conditions imposed in the policy scheme. The conditions imposed in the policy scheme is unambiguous that the relevant shipping bills should contain both the names of the 3rd party and the license holder. The findings of the competent authority reveals that in order to relax the conditions, EPCG license number, date of the license and the name of the EPCG license holder should be endorsed in the shipping bills. However, the authority found that the petitioner repeatedly failed to file the copies of the shipping bills relating to the 3rd party exports made by them - In respect of the opportunity granted, the petitioner could not establish the same through documents and thus, the authorities had no option but to reject the claim of the writ petitioner to grant of exemption.
It is not as if the authorities have not considered the case of the writ petitioner, the authorities have gone into the documents filed by the petitioner and admitted to call out an opportunity in order to comply with clause (v) of the police scheme. Since, the requisite particulars are not available in the documents produced by the petitioner, they were not able to consider the case of the petitioner for grant of exemption positively. This being the factum, the case of the petitioner is to be considered only if the shipping bills contain these particulars and are produced before the authorities along with the application and not otherwise.
This Court do not find any infirmity in respect of the order passed by the respondents - Petition dismissed.
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2023 (3) TMI 1294
Time Limitation - levy of Anti Dumping Duty - whether the learned CESTAT was right in rejecting the petitioner’s appeal on the ground of limitation in the given facts and circumstances of the case? - HELD THAT:- Undisputedly, the appellant’s appeal was delayed by a period of ninety-one days, as noted by the learned CESTAT. However, it appears that the learned Tribunal failed to appreciate that the petitioner was not raising any other ground but merely sought to keep his earlier appeal alive, whereby the appellant had challenged the levy of Anti-Dumping Duty on two chemicals, namely, Vinylidene Fluoride and Hexafluoropropylene Polymer.
The learned CESTAT had faulted the petitioner for not participating in the proceedings for the sunset review. However, the petitioner had explained that he was not aggrieved by levy of Anti-Dumping Duty on the product Fluoroelastomers; the appellant’s limited grievance was with regard to two chemicals, which were sought to be included within the net of Anti- Dumping Duty.
It is considered apposite that the impugned order be set aside and the appellant’s appeal be restored before the learned CESTAT for consideration on merits - appeal disposed off.
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2023 (3) TMI 1293
Smuggling - gold of foreign origin - prohibited goods - statements of accused recorded under Sections 108 Customs Act - whether value of individually recovered gold should be considered or value of combined recovered gold should be considered? - Sections 104 and 135 of Customs Act.
HELD THAT:- In Section 135 Customs Act, term "any person" has been used and it denotes to an individual. The term "any person" cannot be interpreted as a group of persons. From the plain reading of Section 135 Customs Act it appears that it refers to an individual.
Delhi High Court also in the case of AIR CUSTOMS VERSUS BEGAIM AKYNOVA [2022 (1) TMI 137 - DELHI HIGH COURT] observed that punishment which is to be imposed on the accused should correspond to the gold that has solely been recovered from his possession and each person should be made answerable for the recovery of gold found in his possession - for the purpose of Section 135 Customs Act value of individually recovered gold should be considered and not the value of combined recovered gold.
Whether alleged recovered gold was prohibited goods as if it was prohibited goods then by virtue of Section 104 (6) and 135 Customs Act, the alleged offence committed by the applicants would be non-bailable and maximum punishment provided for such offence is seven years? - HELD THAT:- From the perusal of Section 2(33) Customs Act it appears that every good is prohibited if its import or export is subject to an prohibition under the Customs Act or any other law for the time being in force.
Recently three Judges Bench of the Apex Court in the case of COMMISSIONER OF CUSTOMS VERSUS M/S. ATUL AUTOMATIONS PVT. LTD., AND PARAG DOMESTIC APPLIANCES [2019 (1) TMI 1324 - SUPREME COURT] with regard to multi function device observed that MFDs were not prohibited but restricted items for import and further observed that there will exist fundamental distinction between what is prohibited and what is restricted. Therefore, from the case of Atul Automation, it appears that on the basis of restriction on import a good cannot be said to be prohibited good in terms of Section 2 (33) Customs Act.
In case as hand, according to the prosecution, gold was recovered from the possession of the applicants which was liable for confiscation under Section 111 of the Customs Act and as per Section 125 Customs Act the authority concerned may levy fine in lieu of confiscation and, therefore, it appears from the provisions of Section 11 of Customs Act gold is not prohibited goods but it is restricted goods and as per Section 125 Customs Act in lieu of confiscation fine may be levied. Therefore, as import of gold is not prohibited but restricted subject to prescribed payment of duty, thus alleged recovered gold is not prohibited goods under Section 2(33) Customs Act but it is restricted goods.
The applicants committed offence under the provisions of Customs Act for which maximum punishment is three years and as their case does not fall under Section 104 (6) Customs Act, therefore, by virtue of Section 104(7) Customs Act the alleged offence committed by applicants is bailable one, therefore, they are entitled to be released on bail.
Let the applicants-Mohd. Tufail and Mohammad Alam be released on bail in the case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the conditions imposed - application allowed.
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2023 (3) TMI 1292
Seeking recording of statement u/s 108 of Customs Act, 1962 in the presence of advocate at visible but not audible distance - seeking de-sealing of his premises - Smuggling of Gold - HELD THAT:- The best possible manner to deal with it is to allow presence of the advocate at a visible distance but beyond the audible distance. This will also ensure transparency in the enquiry that Custom Officers propose to make with the Petitioner and this is what has been done by this Court in several similar cases in the past - reliance can be placed in case of SHRI BYJU CHANDRASEKHARAN NAIR VERSUS UNION OF INDIA AND ANR. [2022 (4) TMI 1515 - BOMBAY HIGH COURT], HARSHBHAI AMARSHIBHAI GOYANI VERSUS UNION OF INDIA AND ORS. [2022 (4) TMI 1517 - BOMBAY HIGH COURT], MANIPRABHA IMPEX PVT. LTD. VERSUS UNION OF INDIA [2022 (4) TMI 1516 - BOMBAY HIGH COURT] - thus, the first prayer to the extent, it seeks presence of advocate at visible distance but not audible distance deserves to be allowed.
De-sealing of the premises of the Petitioner - HELD THAT:- There is no power available with the custom authorities to seal premises of any person, which are nothing but a form of immovable property. Under Section 110 or Section 121 of the Customs Act, 1962 what can be seized and confiscated is the “goods” or movable property. Section 110 and Section 121 respectively empower the customs authorities to seize the goods liable to confiscation and confiscate the sale proceeds of the smuggled goods, which are sold by the person, having knowledge or reasons to believe that the goods are smuggled goods. The word “goods” has been defined in Section 2(22) of the Customs Act, 1962 and it includes (a) vessels, aircraft and vehicles (b) Stores (c) baggage (d) currency and negotiable instruments and (e) any other kind of movable property.
It is thus clear that the seizure of the goods contemplated under Section 110 or Section 121 is only of movable property which is not immovable property. Even otherwise no immovable property can be seized and confiscated, though it can be attached and sold for making recovery of loss to or dues of the government as for example, when done in exercise of the power under Section 142 (1) (c) (ii) of the Customs Act, 1962, but that stage, however, is yet to reach in this case. Therefore, even the second prayer made in the petition deserves to be allowed.
It is directed that if any statement of the Petitioner is to be recorded in terms of Section 108 of Customs Act, 1962, same shall be recorded in the presence of advocate of the Petitioner kept at a visible distance but not audible distance during interrogation. The prayer for videography is, however, rejected - Petition allowed in part.
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2023 (3) TMI 1291
Scope of discloser of information under RTI - Interplay of anti-dumping proceedings under the Customs Tariff Act, 1975 and Anti-Dumping Rules with the Right to Information Act, 2005 - only objection of the Petitioners is in respect of disclosure of the photocopy of the note sheet which contains confidential information of the complainants - It is the submission of ld. Counsels for the Petitioners that the information that is sought by the RTI Applicant is confidential in nature and, specifically, it is third party information given to the DA for the purpose of anti-dumping investigation.
HELD THAT:- A perusal of the provision of the Anti-Dumping Agreement would show that countries were conscious of the need to preserve confidentiality of the information disclosed during proceedings relating to anti-dumping duties. Authorities are permitted to treat the information, which could be commercially sensitive, as confidential and the same is not to be disclosed to any third party, without permission of the party providing the information. The above provisions, in fact, recognised the concept of confidential documents and information on the one hand and non-confidential summary on the other hand. The latter is meant to ensure that requisite information is still provided to third parties to comply with the principles of natural justice while maintaining confidentiality of specific information. The ultimate discretion under the Anti-Dumping Agreement is to be vested in the authority concerned to decide as to whether any information is to be disclosed or not - The scheme of the Anti-Dumping Rules is that as per Rule 5, a written complaint can be filed on behalf of the domestic industry, as defined in Rule 2(b), to the effect that injury is being caused to the domestic industry by furnishing evidence of dumping. The Anti-Dumping Rules require a link between the dumped imports and the alleged injury to be established.
The Court needs to examine whether the Anti-Dumping Rules are ‘inconsistent’ with the provisions of the RTI Act. The legal issue in the context of specific Rules framed by various authorities in respect of disclosure of information, in different contexts, has been subject matter of at least two decisions. In the case of Registrar of THE REGISTRAR, SUPREME COURT OF INDIA VERSUS RS MISRA [2017 (11) TMI 2022 - DELHI HIGH COURT], a ld. Single Judge of this Court was dealing with a request for information under the RTI Act in the context of Supreme Court Rules, 1966/2013 framed by the Supreme Court. In the said decision, the Court considered the framework of the said Rules framed under Article 145 of the Constitution of India, 1950. In the said judgment, the Court drew a distinction between the administrative functioning and the judicial functioning of the Supreme Court.
perusal of the above two decisions shows that the Rules which are made by specific authorities to deal with information provided by parties on the judicial side cannot per se be held to be inconsistent with the provisions of the RTI Act. Moreover, the Supreme Court has specifically held that on the judicial side the information is held by courts as a trustee for litigants in order to adjudicate upon the matter and the same cannot be permitted to be accessed by third parties. A proper balance is to be maintained in order to ensure the confidentiality of documents and other information pertaining to the litigants to the proceedings.
In the case at hand, it is the submission of the RTI Applicant itself that the Anti-Dumping Authority is acting as a quasi-judicial body when dealing with the complaint of the complainant in respect of dumping. This Court has no doubt in holding that the information that has been supplied by the Complainants has been given in the course of adjudication, in the capacity of a litigant. Thus, the information has been received by the Anti-Dumping Authority which now forms part of the record in discharge of its judicial/quasi-judicial function.
None can claim an absolute right to get a certain piece of information, and the nature of the information that is sought would be material. The specific note sheet that has been sought by the RTI Applicant is the note sheet relating to initiation of anti-dumping investigation. From a bare perusal of the original file produced before the Court, it is evident that the note sheet contains various portions of information which may be confidential to the Complainants - For ‘good cause’ the said information can be refused to be disclosed. A perusal of the note sheet sought would also show that the disclosure of the same under the RTI Act, especially in a case where the RTI Applicant was a party to the anti-dumping investigations and is a competitor of the Petitioners could cause serious prejudice and adversely affect various sections of the domestic industry.
In the present case, this Court is of the opinion that the imposition of anti-dumping duty and confidential information disclosed in such proceedings would have a significant impact on the economic interest and trade relations of India, as also would constitute information received by the authority in confidence, which cannot be subjected to disclosure. Section 11 of the RTI Act itself recognizes the intention to protect the information received from third parties. This principle is also the very basis of Rule 7 of the Anti-Dumping Rules, which requires specific authorization of the party providing the information. Thus, in effect, there is no inconsistency between the provisions of the RTI Act and the Anti-Dumping Rules.
The Anti-Dumping Authority is vested with specialised knowledge relating to the trade as also the exclusive knowledge in respect of anti-dumping proceedings. Such knowledge would enable the said Authority to take a considered decision as to whether the particular information is to be disclosed or not. Such expertise does not vest with the CPIO/PIO or other authorities under the RTI Act.
Petition allowed.
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2023 (3) TMI 1290
Provisional assessment on the bills of entry - alleged misclassification of the imported BSP platforms - Non-generation of DIN - Change in the basis of the enquiry to classification of the BSP platform, on the premise that such classification would be under Customs Tariff Entry 8517 62 90 instead of Customs Tariff Entry 8471 50 00 - HELD THAT:- Impugned communication dated 04.08.2020 constitutes a demand that had been raised on the petitioner for the differential duty of Rs.3,91,60,068/- along with interest under Section 28AA of the Customs Act, 1962. The communication, styled as a letter, refers to the provisional assessment on the bills of entry and the alleged misclassification of the imported BSP platforms - In light of the admitted position that the demand has not been preceded by either a show cause notice or order revising the bills of entry (self assessments) such demand has no basis in law and is set aside. The question of bills of entry having been assessed as stated in the counter thus does not arise.
The non-generation of a DIN is fatal to the communication itself. Section 151A of the Act enables the Board to issue Instructions to officers of Customs and such Instructions bind the officers, barring in two situations - The exceptions are, that no order, instruction or direction will require any officer of Customs to make a particular assessment or dispose a particular case in a specified manner and no instructions shall be issued so as to interfere with the discretion of the Commissioner of Customs (Appeals) in the exercise of appellate functions. Both exceptions thus concern the conduct of judicial duties only. As far as administrative duties are concerned the Board has the final word to prescribe guidelines that are mandatory qua the officers. In fact, the judgments cited by learned Standing Counsel stand testimony to the aforesaid settled position of law. The respondents cannot thus attempt to wriggle out of the requirements imposed under Circular Nos.37/2019 and 43/2019.
Incidentally, Circulars issued on 05.11.2019 and 23.12.2019 by the Board have not been brought to the notice of the Hon'ble Supreme Court. The thrust of the exercise is to ensure that every communication issued by the State, including e-mails, must contain an authorisation. The move is a progressive one backed by the avowed objects of transparency and accountaibility, the crying need of the day.
The impugned communication dated 04.08.2020 is set aside - petition allowed.
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2023 (3) TMI 1289
Validity of demand against the clearing and forwarding agent in the absence of Service of SCN - it is alleged that liability has been fastened on the petitioner (agent) in violation of principles of natural justice - applicability of provisions of Section 147 of Customs Act - HELD THAT:- The impugned order is vitiated on several grounds. One of the modes of assessment under the Customs Act is in terms of Section 28 thereof, which is invoked as against the importer by issue of a show cause notice. Section 147 is a provision which fastenes a corresponding, parallel and deemed liability on the agent of the principle as well. It thus stands to reason that the process and procedure for assessment that is followed qua the principle, the importer in this case, would have to be necessarily followed in the case of the agent as well.
In the present case, admittedly no notice has been issued to the clearing agent under Section 28. The argument of the respondents that mere imposition of liability does not require prior notice on the clearing agent is rejected straightaway for the reason that such mulcting of duty is itself bound by the requirement of proper procedure for assessment, as set out under Section 28 of the Act. It simply cannot be countenanced that a demand could be thrust on an entity without following due process prior thereto.
That apart, and as far as recovery is concerned, it is the case of the respondents that there has been no recovery in this matter as they are cognizant of the requirements under the proviso to Section 147(3) that the assessing officer has to record his opinion that the duty has not been recovered from the importer and proceed only thereafter with measures to recover the same from the agent.
Petition allowed.
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2023 (3) TMI 1288
Permission to redeem the goods on payment of fine - import of Kerosene (Petroleum Hydro Carbon Solvent) (prohibited goods) or not - HELD THAT:- The writ petition is disposed of with the directions imposed - The 2nd respondent shall provide to the petitioner copies of all test reports/report relied upon in Ext.P2 order to establish that the goods imported by the petitioner are prohibited goods. This shall be done within one week from the date of receipt of a certified copy of the judgment - A sample of the product shall also be permitted to be drawn by the petitioner for establishing that the goods in question are not prohibited goods. This shall also be permitted within a period of one week from the date of receipt of a certified copy of the judgment.
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2023 (3) TMI 1287
Refund of 4% CVD - time limitation - main argument of Department is that when the period of three months is computed from the date of receiving the Order-in-Original by the reviewing authority, the review orders passed are well within time - HELD THAT:- As per Sub Section (2) of Section 129 D of Customs Act, 1962, the review authority has to examine the decision or order passed by adjudicating authority so as to satisfy the legality or propriety of such decision or order and has to pass a review order directing the department to prefer an appeal before the Commissioner (Appeals). Sub Section (3) of Section 129 D provides that every such order under Subsection (2) shall be made within a period of three months from the date of communication of the decision or order passed by the adjudicating authority.
It cannot be understood why the Department failed to point out the date seal of the Reviewing Authority before the Commissioner (Appeals). The very same facts and issue came up for consideration before the Tribunal in other appeals filed by the Department - The Tribunal in M/S. VCR TIMBER ENTERPRISES AND M/S. MEHNDIPUR BALAJI IMPEX (P) LTD. [2023 (3) TMI 1082 - CESTAT CHENNAI] held that we have no reason to disbelieve the Commissioner (Appeals) that no evidence was placed before him as to the date on which the Orders-in-Original was received by the reviewing authority, in spite of repeated requests. Revenues actions should be beyond suspicion. Hence the strong inference that can be drawn is that there was no evidence available to establish as to the date on which the order-in-original was received by the Review Cell and apparently there was a delay in passing the review order.
The contention of the Department that the order was received by the reviewing authority only on 23.03.2010, cannot be accepted - there are no grounds to interfere with the observations and findings of the Commissioner (Appeals).
The appeal filed by the Department is dismissed.
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2023 (3) TMI 1286
Valuation for the purpose of CVD - Levy of differential Additional Duty of Customs - institutional buyer - should the additional duty of customs be assessed as per Section 4 or Section 4A of the Central Excise Act? - if assessment is done under Section 4A if Rs. 2,100/- can be taken as RSP? - demand of interest and imposition of penalty under Section 112 - Circular dated 11 March 2016 issued by the CBEC.
HELD THAT:- It is an institutional consumer because it uses the STBs to provide service to the subscribers. Therefore, the bulk of STBs purchased by Dish TV cannot be considered as having a retail sale nor can the price of Rs.2,100/- be called Retail Sale Price. There can be retail price only if the STBs are sold to the ultimate consumer.
In this case since the goods are not sold to the consumer there cannot be a retail sale price. The price at which goods are sold in wholesale or to an industrial or institutional consumer cannot be retail sale price as per the SWM Rules. Retail sale price is available only in those few cases where set top boxes have been damaged and subsequently sold to the subscriber. Undisputedly, the set top boxes were sold were much lower prices than Rs. 2,100/- in respect of such retail sales. The price at which the goods were sold to Dish TV cannot be considered as retail sale price.
Dish TV cannot be considered as retail buyer because it is not using the goods for itself but is using them to provide service to its subscribers. Therefore, the price of Rs. 2,100/- at which the goods were sold to Dish TV cannot be considered as retail sale price even if the assessment is not modified and continues to be under Section 4A as was done in this case. The assessment should correctly be done under Section 4 as per Bharti Telemedia. Assessment in this case was done under Section 4A as per RSP with abatement as decided by the assessing officer of Rs. 1465/- - the assessing officer has rejected declared RSP of Rs. 1000/- per set top box and recalculated it after adding the basic customs duty to the landed cost of the STB and adding 20% as post importation cost which came to Rs. 1832/-. After allowing 20% abatement, he determined the additional duty of Customs on a value of Rs. 1465/-.
How can the retail sale price be lower than the institutional sale price of Rs. 2,100/-? - HELD THAT:- There is no retail sales but only institutional sales in this case and, there are nothing in Rule 23(2) that permits sale price to institutional buyers to be reckoned as retail sale price. It is true that assessment (both self assessment and re-assessment) were done under Section 4A and the appellant had not assailed the assessment. However, by issuing the SCN Revenue has re-opened the assessment on one ground (that RSP should be taken as Rs.2,100/-) and it is open to the appellant to plead any grounds in defence including any question of law (that Section 4 and not Section 4A should have been applied) and it is for the adjudicating authority and appellate authorities to consider the defence.
Appeal allowed.
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2023 (3) TMI 1216
Validity of review order - Period of limitation - date of receipt of order to be review - appeals dismissed on the grounds of limitation holding that the review order as required under Sub Section (2) of Section 129D of Customs Act, 1962 has been passed beyond the period of three months as envisaged in Sub Section (3) of Section 129D of Customs Act, 1962 - three months ought to have been computed from the date of receiving the Order-in-Original by the Reviewing Authority or not - HELD THAT:- The strong inference that can be drawn is that there was no evidence available to establish as to the date on which the Order-in-Original was received by the Reviewing Cell and apparently there is a delay in passing the review order. The Commissioner (Appeals) has taken all effort to call for the files to check the date of receiving the order by the Reviewing Authority so as to avoid dismissing the appeals as time barred. His efforts did not see any result and had to dismiss the appeals as time barred.
In all the three review orders, the date of receiving the Order-in-Original by the Reviewing Cell is not mentioned. When Sub Section (3) of Section 129 D prescribes a time frame of three months from the date of receiving the orders passed by adjudicating authority, it is necessary and would be convenient to mention it in the review order.
It cannot be understood what prevented the Department from submitting before the Commissioner (Appeals) that the Order-in-Original was received by the Review Cell on the respective dates on which they have stated in the grounds of appeal. As there is no evidence to substantiate the contention of the Department that the Order-in-Original was received on such dates by the Review Cell and as there is no reason to dis-believe the findings of the Commissioner (Appeals) that there was no evidence as to the date on which Order-in-Original was received by the Reviewing Authority, the strong inference that can be drawn is that there is a delay in passing the review orders in these appeals.
The contention of the Department that the orders were received by the Reviewing Authority only on 10.02.2010/16.04.2010/14.07.2010, cannot be accepted - there are no grounds to interfere with the observation and findings of the Commissioner (Appeals).
The appeals filed by the Department are dismissed.
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2023 (3) TMI 1215
Valuation of imported goods - inclusion of fee of EURO 40,000 for transfer of technical knowhow in the assessable value on import of new capital goods - whether the order passed by the Deputy Commissioner, Special Valuation Branch directing to modify the order so as not to include the technical knowhow fee to the assessable value of imported goods is legal and proper?
HELD THAT:- The collaboration agreement has been perused and it is found that the transfer of knowhow and related technical assistance was not a condition for sale of the capital goods.
The Hon’ble Apex Court in the case of J.K. Corporation Ltd. [2007 (2) TMI 1 - SUPREME COURT] held that Any amount paid for post-importation service or activity, would not, therefore, come within the purview of determination of assessable value of the imported goods so as to enable the authorities to levy customs duty or otherwise. The Rules have been framed for the purpose of carrying out the provisions of the Act. The wordings of Sections 14 and 14(1A) are clear and explicit. The Rules and the Act, therefore, must be construed, having regard to the basic principles of interpretation in mind.
Thus, the view of the Commissioner (Appeals) that technical knowhow fee of EURO 40,000 need not be included in the assessable value of imported goods is legal and proper - appeal dismissed - decided against Revenue.
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